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THE LEGAL RIGHTS AND OBLIGATION IN
ISLAM
Dr. Gemala Dewi, SH. L.LM.
INTRODUCTION
• Islam have a tradition of theorising about individual
rights and freedoms, in the vein of Locke, Hobbes,
Montesquieu, Rousseau, Paine and JS Mill in premodern times.
• However, there is little doubt that Islamic thought
and jurisprudence, in the pre-modern era, did deal
with many aspects of the rights and duties of
various categories of human beings; but in a
framework that was conceptually and
methodologically different from the western
tradition.
DEFINITION OF RIGHT IN ISLAM
The rights in arabic means Huqooq.
 Huqooq itself is a word derived from the root
word Haqq- a word which can mean equally
truth or right or rights over others, or share.( AlHaqq or the Truth, is one of Allah’s attributes).
 It is in this form that the equivalent principle of
human rights and duties in Islam is found in a
huge array of original Islamic sources.
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• Such sources can include documents on the
principles and maxims of government;
sayings of rulers and judges; actions of the
muhtassib,( a type of ombudsman); treatises
on justice, equality, ethics, political and
moral philosophy, accountability, toleration,
treatment of minorities, property rights,
freedom of conscience and expression, and
so on.
RIGHTS IN QURAN
• Human beings ( insan) and Haqq are mentioned
over 70 and 250 times respectively.
• However, the pre-modern reading and
interpretation of the Quranic text was not done with
the specific intent of developing a human rights
doctrine. This only emerged in the 20th century
mainly in response to the challenge of the modern
human rights movement.
THE EPISTLE OF RIGHTS BY IMAM ALI ZAIN
AL-ABIDIN
• This is a document that has been authoritatively attributed
to Imam Ali Zain al-Abidin (d.714), the fourth Imam of the
Shia Muslims. It sets out eight category of rights, mainly
expressed in terms of the classical understanding of rights
that others have over the individual.
• These include: individual rights and obligations couched in
religious terms; spiritual and religious rights; the rights and
obligations of the ruler and ruled; the rights of parents and
children; social rights ( such as the rights of neighbours);
economic and financial rights; the rights of those seeking
reform ( an uniquely Islamic category); Ethical and moral
rights
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PROPERTY RIGHTS IN ISLAM
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The idea of enforcing religious discipline in business is not
new, few would argue that culture actually determines
economic behavior in today’s industrial societies.
What makes this development interesting is the fact that
Islam does not separate between markets and sanctuaries,
nor does it separate between morals and economic
rationality.
Indeed, economic and financial practices in Islam are not
bound primarily by the marketplace. Fiqh (jurisprudence) and
the sharīca in general form the background against which all
attempts in finance and business find guidance and
legitimacy.
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Ownership rights in Islam originate from the
concept of khilafah (stewardship) which is a
constituent of the Islamic faith
The Qur’ān (the foremost source of Islamic
Law) contains various rules and provisions
which curtail to a certain extent the rights of
ownership.
 For example, the Qur’ānic prohibition of usury
(ribā) and the sharīca’s prohibition of
speculation (gharar) constitute two landmarks
of the Islamic legal system.
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SOURCES OF OWNERSHIP IN ISLAM
Private Ownership
 Public Ownership
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PRIVATE OWNERSHIP
1. Physical and Mental Work
 Since Islam seeks to promote the economic well being of each
person within the framework of its moral norms, it urges man to
engage in productive activity and to utilize all the resources he is
entitled to, circumscribed by the limits set by the sharīca.
 Accordingly, ownership is considered a fair return when the job is
done with care and devotion. The Qur’ān (9:105) states: “And say:
work; soon will God observe your work and His Apostle, and the
Believers.”
 This high admiration for work is a clear enticement to innovation and
novelty. Hence, wage-labor is seen as something perfectly normal,
and individuals are encouraged to invest in their human capital
development.
 Indeed, intellectual property rights are acknowledged and
safeguarded by the sharīca.
Private Ownership
2. Landed Property
 According to the Islamic theory of landed property, development and
fructification of what one possesses binds ownership. Property can
be acquired through developing and utilizing arable fertile (farming)
land with no previous claim of ownership.
 However, the right someone has acquired to a piece of land is not
lost merely through non-use; it vanishes only if someone else brings
that land under cultivation.
 The purpose of such law is to benefit the general public by bringing
life to the virgin land and to ensure the continuity of utilization.xiii No
privately owned natural resource is to be left unused.
 Meanwhile, the concept of sharecropping is acknowledged by most
Islamic schools of thought as a justifiable mode of acquiring property
rights.
PRIVATE OWNERSHIP
3. Mining and Minerals
 Extraction of minerals (al-rekaaz) is another
accepted means by which one may legitimately
claim ownership rights.xiv Here the extractor is
assured of four fifth of the yield, provided that
these minerals are extracted through individual
efforts.
 The public treasury (bayt al-māl) claims the
other fifth.
PRIVATE OWNERSHIP
4. Inheritance and Bequest
 Islamic jurists agree that property rights can be transferred through
inheritance and bequest. The sharīca has a detailed set of rules and
regulations concerning the intergenerational transfer of asset ownership
from parents to children.
 In principle, the ownership rights of the entire inherited wealth can go to one
heir. However, only one third of the property can be willed away as a
bequest.xv A closely related source of ownership acknowledged by the
sharīca is the right of Ash-Shufe’ah (preemption).
 The right of Ash-Shufe’ah gives the neighbor and/or the partner the right to
acquire the property of his neighbor or partner when the latter intends to
sell it. The Prophet was quoted as giving a verdict regarding Shufe’ah in
every undivided joint object (property). But if the limits are defined and the
shares are identified, there is no preemption.
 Waqf is also a legitimate means of acquiring the benefits of ownership
PRIVATE OWNERSHIP
5. Trade and Commerce
 Trade and commerce are praised sources of acquiring
ownership rights.
 In fact, the Sunna has stated that trade is a superior
way of earning one’s livelihood: “If you profit by doing
what is permitted, thy deed is jihad [that is, it is
identified with holy war or any vigorous effort
undertaken for God’s cause] and, if thou usest it for thy
family and kindred, this will be a sadaqa [that is, a pious
work of charity]; and truly, a dirham [drachma, silver
coin] lawfully gained from trade is worth more than ten
dirhams gained in any way.”
PUBLIC OWNERSHIP
1. Public Farming
 It is quite true that, in the early stages of the Islamic
State, revenues came mainly from agricultural
production. Expropriations “for the public good” were
numerous at the time and immense areas of cultivable
land were placed at the disposal of the State.
 It was indispensable that this land be exploited so as to
meet the costs of the machinery of State and to
generate revenues for the treasury (bayt al-māl).
 Part of the revenue was used to provide help for the
needy and the poor.
PUBLIC OWNERSHIP
2. Public Utility
 Although the sharīca advocates sharing rather than
excluding, it restricts and regulates public ownership.
 For example, property may be expropriated for public
utility such as pasturage, mining, and water sources.
 Moreover, designated public farming land cannot be
used for private purposes unless a special arrangement
is made (e.g., share cropping). This emphasizes the fact
that production for the public interest gives the State the
power to limit the property rights of individuals. However,
individuals affected by regulations that allow taking land
use options from owners must be compensated.
PUBLIC OWNERSHIP
3. Other Public Resources
 A variety of other sources of public revenue are also
available to the Islamic State. These include the zakat (a
wealth and property tax to be recovered from Muslims),
kharāj (land tax on agricultural land surrendered to Muslims
without any resistance), jizya (poll tax on non-Muslims
residing in Muslim territories), ushoor (custom duties) and
rekaaz (mines and treasure-trove).
 Ghaninmah (spoils of war), and fai’ (booty surrendered by
the enemy without actual fighting), are other occasional
sources.
 Each one of the above-mentioned sources is subject to a
separate fund account.
RIGHT OF KHIYAR
DEFINITION OF KHIYAR
Khiyar means choices. Khiyar commonly refers to
certain rights of two parties, which are the seller
and the buyer to verify or cancel a contract .
 Usually the decision for khiyar is based on the
price agreed by both parties.
 The agreement between both parties should be
during the same ceremony to discuss and focus on
the respective transaction and is valid as long as
they have not departed from the place of
negotiation.
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CATEGORIES OF KHIYAR
Essentially khiyar was designed to fulfil the
interests
 of business transaction in Islamic law.
 The ulama have divided the khiyar to several
categories.
 Imam Hanafi divides it to seventeen types, Shafi'i
sixteen, Hanbali eighteen and Maliki two.
 Meanwhile four of the main khiyar that will be
discussed in this article is Khiyar Majlis, Khiyar
Syarat, Khiyar Aib and Khiyar Rukyah.
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CATEGORIES OF KHIYAR
Khiyar majlis
 Khiyar majlis refers to the right of choices
during a certain ceremony.
 It is defined as the right for both parties,
between the seller and buyer to perform the
transaction or cancelled it as long as still in
place (the ceremony) of the transaction.
1.
CATEGORIES OF KHIYAR
2. Khiyar Syarat :
 Khiyar syarat is a particular choice that is set
within the conditions of a certain contract.
 It gives right to one of them or both of them or
a third party to verify or cancel certain contract
in a certain period of time
CATEGORIES OF KHIYAR
3. Khiyar Aib
 Khiyar Aib is the right to cancel or continue a
transaction when a certain good bought
experience defects or damages, so the seller
has the right to return the money of the buyer.
CATEGORIES OF KHIYAR
4. Khiyar Ru’yah :
 Khiyar Ru’yah is the right to make choices given
purchasers whether he wants to continue the
contract or cancel when the goods are not
present during contract process.
DEFINITON LIABILITY
Liability is discussed by Muslim jurists under the
title “daman”.
 It is defined as responsibility to pay a financial
compensation as a result of an injury inflicted on
others.
 Daman covers liability in civil as well as criminal
cases.
 Compensated injuries in daman include injuries
inflicted on the human being as well as property
injuries.
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DEFINITION OF ILTIZAM
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Scholars dealing with Ottoman socio-economic history have generally
considered the Ottoman iltizam as tax-farming.
Iltizam is mean Commitmen
Farming the revenue and contracting its collection is called iltizam,
and the mültezim is known as a tax-farmer. The term mültezim was
used for those who, from the mid-16 th century onwards, collected
taxes and dues on behalf of the Ottoman treasury.
Generally speaking, iltizam means every kind of tax-collecting in the
name of the state is undertaken by private individuals but is down to
their own responsibility to collect the said amound.
The officials who collected revenues for the Treasury could either
deliver all the proceeds while drawing a salary, or could buy the right
to retain the proceeds themselves by paying the Treasury an agreed
sum in advance. This system is known as the iltizam.
EXPIRATION OF THE AGREEMENT
Because Fasakh
 Through time
 Applicability rights khiyar
 Death.
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